INCENTIVIZING INEFFECTIVE-ASSISTANCE-OF-COUNSEL CLAIMS RAISED ON DIRECT APPEAL: WHY APPELLATE COURTS SHOULD REMAND "COLORABLE" CLAIMS FOR EVIDENTIARY HEARINGS.

• Author: Newton, Brent E.

1. INTRODUCTION

   The constitutional right to the assistance of counsel, including the subsidiary rights to appointed (1) and effective (2) assistance of counsel, unquestionably is a criminal defendant's most important right. The Supreme Court has long recognized that the right is "basic to a fair trial" and "affects [the defendant's] ability to assert any other rights he may have." (3) The right to counsel applies not only during a trial itself, (4) but also during critical pretrial proceedings, (5) plea bargaining and guilty plea proceedings, (6) and sentencing hearings. (7)

   Despite its importance, in the vast majority of American jurisdictions today, a claim of ineffective assistance of trial counsel cannot be raised on direct appeal, (8) yet there is no constitutional right to the assistance of counsel in state or federal habeas corpus proceedings. (9) That means that prisoners--the vast majority of whom are indigent (10) and many of whom lack significant education or have mental or intellectual disabilities (11)--typically are forced to develop and litigate ineffectiveness claims without the assistance of an attorney, assuming they are even able to identify such claims without such assistance. As a result, after their direct appeals are over, the overwhelming majority will be unable to raise a viable ineffectiveness claim, assuming one exists.

   In 2012, in Martinez v. Ryan, the Supreme Court, recognizing that most state prisoners without the assistance of counsel are unable to meaningfully investigate or litigate an ineffectiveness claim on state habeas corpus review, made it easier for them to raise an ineffectiveness claim on federal habeas corpus review. (12) The Court held that, as an equitable matter in federal habeas corpus proceedings, "a procedural default [during state habeas corpus proceedings] will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the [state's habeas corpus] proceeding, there was no counsel or counsel in that proceeding was ineffective." (13)

   In creating that equitable exception to the traditional procedural-default rule applicable to federal habeas proceedings, the Court in Martinez relied on three key premises:

   * The constitutional right to the effective assistance of counsel in the trial court is the most fundamental right that a criminal defendant possesses, and our legal system thus should encourage the vindication of that essential right. (14)

   * A pro se defendant, particularly one who is incarcerated, typically cannot develop and file a viable claim of ineffective assistance of trial counsel. (15)

   * A jurisdiction with procedural rules that prevent a defendant from raising a claim of ineffective assistance of trial court counsel on direct appeal, when the defendant still possesses the constitutional right to the assistance of counsel, significantly decreases the odds of the successful vindication of the constitutional right to the effective assistance of trial counsel. (16)

   For these reasons, the Court in Martinez necessarily recognized that it is fundamentally unfair and denigrates the right to effective assistance of trial court counsel to apply a procedural default bar on federal habeas corpus review to an ineffectiveness claim when the state prisoner lacked counsel (or lacked effective counsel) during initial state habeas corpus proceedings. (17) At least for state defendants, who represent the bulk of all felony defendants in the United States, (18) Martinez offers them some hope of raising an ineffectiveness claim on federal habeas corpus review--although they lack a constitutional or statutory right to the assistance of counsel on federal habeas corpus review (save in death penalty cases, in which there is a statutory right) (19) and still face the many substantive and procedural hurdles created by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). (20)

   Although Martinez is an important decision that helps protect the "bedrock" right to effective assistance of counsel in trial court proceedings for a select few state criminal defendants, there is an additional way to protect that right even more vigorously: state and federal appellate courts should allow ineffectiveness claims to be raised on direct appeal and remand "colorable" claims for an evidentiary hearing, thereby allowing the claim to be addressed while a defendant still possesses the constitutional right to the appointed and effective assistance of counsel. This article describes that procedure, which a handful of state and federal courts already follow, and recommends that the Supreme Court of the United States and state appellate courts adopt it pursuant to their supervisory authority over criminal procedure. (21)

   Such a procedure, together with Martinez's equitable exception, would help vindicate the fundamental right to counsel in the trial court at both the front end of the appellate process (i.e., the direct appeal) and the back end (i.e., federal habeas corpus review). Creating this procedure also would incentivize criminal defendants' direct appeal counsel to identify and raise colorable ineffectiveness claims--an incentive that currently is absent in the vast majority of American jurisdictions. Such a procedure also would incentivize better trial court representation because defense counsel would be on notice that their performances might be reviewed for effectiveness on direct appeal. Currently, defense counsel in American trial courts are well aware that, except in the rare case in which a pro se defendant can effectively raise an ineffectiveness of counsel claim in habeas corpus proceedings or the even rarer case in which the defendant can afford to retain habeas corpus counsel to investigate prior counsel's performance, trial counsel's performance will never be reviewed. This article therefore proposes an approach that will give greater expression to the foundational right to counsel and that, in practice, will promote meaningful representation of criminal defendants in trial courts.

2. SURVEY OF AMERICAN JURISDICTIONS' PROCEDURES FOR DEFENDANTS WHO WISH TO RAISE CLAIMS OF INEFFECTIVE ASSISTANCE OF TRIAL COURT COUNSEL ON DIRECT APPEAL

   Wide variation exists among state and federal appellate courts with respect to the procedures for raising claims of ineffective assistance of trial court counsel on direct appeal. There are five main approaches:

   1) a categorical prohibition on a defendant's raising an ineffectiveness claim on direct appeal (thus always relegating the defendant to raising the claim in habeas corpus proceedings); (22)

   2) a rule permitting a defendant to raise the claim on direct appeal only if the existing record "conclusively" shows ineffectiveness of trial court counsel (and, if not, relegating the defendant to raising the claim in habeas corpus proceedings); (23)

   3) a rule permitting an ineffectiveness claim to be raised on direct appeal if the record conclusively establishes the ineffectiveness of trial court counsel or, if a claim is at least "colorable" or "plausible" based on the existing record, remanding the case for an evidentiary hearing on the claim in the trial court; (24)

   4) a rule requiring a defendant to raise an ineffective assistance claim on direct appeal or risk procedurally defaulting the claim in a subsequent habeas corpus proceeding; (25) and

   5) a procedure permitting direct appeal counsel to file a motion for a remand (typically attaching extra-record materials such as affidavits or at least making a factual proffer of the new evidence that appellate counsel intends to offer) for an evidentiary hearing on an ineffectiveness claim or permitting direct appeal counsel to simultaneously litigate a habeas corpus petition raising the ineffectiveness claim. (26)

   Since 2003, when the Supreme Court decided Massaro v. United States, (27) most federal circuit courts have refused to address the merits of claims of ineffective assistance of trial counsel raised for the first time on direct appeal unless the existing record "conclusively," "obviously," or "without a doubt" supports the claim without further evidentiary development. (28) Such claims are rare because a record on a direct appeal was not developed with an ineffectiveness claim in mind, (29) except in the exceedingly rare case in which a defendant, following conviction at trial, managed to obtain a new attorney who was able to file an ineffectiveness claim in a timely motion for a new trial. (30) Some federal appellate courts actively discourage defendants from raising ineffectiveness claims on direct appeal. For example, the Seventh Circuit has strongly cautioned defendants not to be "foolish" and raise an ineffectiveness claim for the first time on direct appeal, lest it be rejected at that juncture and foreclosed from being relitigated in a more fulsome manner on habeas corpus review. (31)

   In contrast, two other federal circuit courts--the First and D.C. Circuits--permit a defendant to raise an ineffectiveness claim on direct appeal even if the existing record does not "conclusively" establish the claim and will remand for an evidentiary hearing so long as the record supports a "colorable" ineffectiveness claim. (32) Notably, the many D.C. Circuit decisions recognizing this procedure include those authored by Justices Kavanaugh and Thomas when they formerly were members of the D.C. Circuit, (33) as well as a decision also joined by Chief Justice Roberts when he formerly was a member of that court. (34) Some state appellate courts also follow this practice, (35) although most follow the same rule as the majority of federal circuit courts. (36)

3. FEDERAL AND STATE APPELLATE COURTS SHOULD ADOPT THE PROCEDURE PERMITTING "COLORABLE" INEFFECTIVENESS CLAIMS TO BE RAISED ON DIRECT APPEAL

   Particularly after the Supreme Court's 2012 decision in Martinez v. Ryan, there are at least five reasons why, if a defendant represented by new...